IHC overturns cabinet’s decision on appointments in NCHR, NCSW

Published March 30, 2021
IHC Chief Justice Athar Minallah pointed out that Section 4 of the NCHR Act 2012 unambiguously showed that the legislature had not intended to “invite applications” from interested persons. — IHC website/File
IHC Chief Justice Athar Minallah pointed out that Section 4 of the NCHR Act 2012 unambiguously showed that the legislature had not intended to “invite applications” from interested persons. — IHC website/File

ISLAMABAD: The Islamabad High Court on Monday reversed the federal cabinet’s decision regarding appointment of chairpersons of the National Commission for Human Rights (NCHR) and National Commi­ssion on Status of Women (NCSW) and directed the Ministry of Human Rights to comply with the legal provisions.

The federal government under Section 4 of the National Commission for Human Rights (NCHR) Act 2012 is mandated to invite suggestions regarding suitable persons for appoint­ment as chairperson and members of the commission. After proper scrutiny, the federal government has to submit a list of suitable persons to the prime minister and the opposition leader in the National Assembly.

The mode of appointment in the NCSW is also the same.

The prime minister in consultation with the opposition leader is required to forward three names for each post to the Parliamentary Committee for hearing and confirmation of any one person for each post. If there is no consensus then each is required to forward a separate list to the Parliamentary Committee. The statutory requirements for considering and recommending the names by the Parliamentary Committee have been described under Sub-section (3) of Section 4 of the NCHR Act.

Directs government to withdraw public notices issued in connection with appointment of chairpersons

Through a petition, a citizen informed the IHC that following the cabinet’s decision taken at its meeting on Nov 17 last year, the human rights ministry had published public notices in various daily newspapers.

A copy of the advertisement/public notice was submitted to the high court.

The court examined the public notice and observed that besides inviting suggestions, applications from interested persons were also invited.

IHC Chief Justice Athar Minallah pointed out that Section 4 of the NCHR Act 2012 unambiguously showed that the legislature had not intended to “invite applications” from interested persons.

The petitioner is aggrieved because the NCSW and NCHR have been dysfunctional since 2019. The former was established under the National Commission on the Status of Women Act 2012 and the latter under the NCHR Act 2012.

The petitioner contended that the language of Section 4 of the Act was unambiguous. There is a distinction between “inviting suggestions for suitable persons” and “inviting applications from interested persons/candidates”. The latter expression cannot be read into Section 4.

Moreover, the petitioner argued, the expression “inviting suggestions for suitable persons” had an altogether different intent. The public notice is, therefore, required to have invited suggestions for suitable persons.

Chief Justice Minallah observed that it was implicit in Section 4 that the suggestions were to be made either by citizens or organisations/entities e.g. the Pakistan Bar Council, respective high court bar associations, Human Rights Commission of Pakistan, Pakistan Federal Union of Journalists, etc.

He said the legislature appeared to have been cognisant of the fact that many eligible persons would be hesitant to offer themselves for being appointed as chairperson or members of the commission. The intent was to invite suggestions, particularly from the stakeholders.

The court observed that the cabinet’s decision showed that it had directed the ministry/division concerned to initiate the process on the basis of summary placed before it.

Justice Minallah said the summary forwarded to the cabinet was based on incorrect interpretation of Section 4 of the NCHR Act. The invitation of applications from interested persons was in violation of Section 4 of the NCHR Act and it had thus unnecessarily created confusion and delay in constituting the commissions, he observed.

The court further noted that Section 4 of the NCSW Act explicitly stated that the federal government shall, through public notice, invite suggestions for suitable persons for appointment as chairperson. “It definitely does not require seeking applications from interested persons. Both the commissions are of paramount importance vested with functions and powers of utmost significance in the context of protecting human rights or rights of women, as the case may be,” the court observed.

Subsequently, the IHC directed the federal government to withdraw the public notices/advertisements issued in connection with the appointment of chairpersons of NCSW and NCHR and said that “in order to make the process meaningful and effective, the Ministry of Human Rights is expected to reach out to the relevant stakeholders after publishing notices for seeking suggestions”.

The hearing was adjourned till April 15.

Published in Dawn, March 30th, 2021

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